Opinion
INDEX NO. 150122/2019
09-26-2019
DENISE SMITH, Plaintiff, v. V.J LONGHI ASSOCIATES, MORRIS HANDLER Defendant.
NYSCEF DOC. NO. 34 PRESENT: HON. W. FRANC PERRY Justice MOTION DATE June 6, 2019 MOTION SEQ. NO. 001
DECISION + ORDER ON MOTION
The following e-filed documents, listed by NYSCEF document number (Motion 001) 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33 were read on this motion to/for DISMISS.
In this action plaintiff alleges that that defendants, V.J. Longhi Associates and Morris Handler are liable for professional negligence in failing to properly prepare her medical malpractice action and compelling her to settle the action for less than its alleged value. In motion sequence number 001, defendants seek to dismiss the complaint pursuant to CPLR §§3211(a)(1) and (a)(7), based on documentary evidence and because plaintiff consented to the settlement in court.
BACKGROUND
Plaintiff retained V.J. Longhi Associates ("Longhi") in or about November, 2005 to pursue a medical malpractice action on her behalf against Victor Ho, M.D. ("Dr. Ho"), Victory Memorial Hospital ("Victory Hospital") and Staten Island University Hospital - North ("S.I. Hospital"). At that time, Morris Handler ("Handler") was associated with Longhi and worked on plaintiff's case. (NYSCEF Doc. Nos. 1, ¶¶ 2-6, and 33). Plaintiff alleges that defendant Handler did nothing to prepare her case and litigate the action for eight years until Dr. Ho came from Saudi Arabia for his deposition on April 30, 2013. (Id., ¶ 9). According to the complaint, plaintiff alleges that she was forced to settle her malpractice action for much less than the action was worth, as a result of the defendants' professional negligence in failing to properly prepare her case for trial.
In support of their motion seeking to dismiss the complaint for failure to state a claim, defendants provide documentary evidence which they claim refutes the allegations in the complaint and reveals that plaintiff consented to the settlement on the record in open court. (NYSCEF Doc. Nos. 6 - 20). In addition, defendants submit the affidavit of Morris Handler in support of their motion. (NYSCEF Doc. No. 4). Defendants maintain that the record demonstrates that the allegation that the underlying medical malpractice action was not properly prepared for trial, is belied by the documentary evidence, including the Bill of Particulars which was served and filed on August 22, 2006. (NYSCEF Doc. Nos. 9, 10). In addition, defendants note that prior to serving the Bill of Particulars, Longhi retained Arnold E. DiJoseph, P.C., a seasoned litigator, to prosecute plaintiff's medical malpractice action.
Thereafter, in April, 2006, plaintiff consented to discontinuing the action against S.I. Hospital. (NYSCEF Doc. Nos. 11 and 12). During the pendency of the underlying action, Victory Hospital filed for bankruptcy protection and requested a stay of plaintiff's action. (NYSCEF Doc. No. 13). As a result of the bankruptcy, plaintiff directed her attorney to discontinue the malpractice action against Victory Hospital which was confirmed in a letter to her dated June 4, 2008. (NYSCEF Doc. No. 14).
Defendants have also submitted, documents evidencing the actions undertaken to prepare plaintiff's underlying medical malpractice action for trial. Specifically, defendants indicate that plaintiff was deposed over three separate sessions, and that Dr. Ho was deposed thereafter. (NYSCEF Doc. Nos. 15 and 16). Additionally, defendants indicate that in further preparation of the underlying action, expert witnesses were retained and in accordance with said retention, the requisite CPLR 3101(d) disclosure was exchanged, noting that three experts would testify at trial on behalf of plaintiff. (NYSCEF Doc. Nos. 17 and 18).
Defendants have also demonstrated that plaintiff developed a conflict with attorney DiJoseph, resulting in the retention of attorneys Richard Janowitz and his associate Andrew Rosner, to represent plaintiff until they too developed a conflict and sought to be relieved, resulting in further delay of the prosecution of the underlying action. (NYSCEF Doc. No. 19). Thereafter, Abend & Silber, PLLC were retained as trial counsel and the action proceeded to trial in Supreme Court, Kings County. The underlying trial commenced with the direct and cross-examination of Dr. Ho; defendants had arranged for three expert witnesses to give testimony in support of plaintiff's underlying action and prior to the first expert witness testifying, the parties agreed to settle the action for $300,000. (NYSCEF Doc. Nos. 19 and 20).
Defendants rely on the transcript in the underlying action which demonstrates that after the parties agreed to settle the malpractice action, plaintiff who had been present in the courtroom throughout the trial, was allocuted on the record indicating that she had agreed to settle her case for $300,00. The transcript shows that plaintiff accepted the settlement "of [her] own free will and not under any duress whatsoever" and that she was satisfied with the legal representation in the matter. (NYSCEF Doc. No. 20, pp. 139-140). Based on the documents submitted in support of dismissal, defendants contend that the complaint is wholly insufficient and fails to state a claim for legal malpractice. Defendants argue that plaintiff's allegations do not establish that defendants' alleged negligence was the proximate cause of plaintiff's damages. Specifically, defendants aver that plaintiff has failed to present any basis for her allegation that defendants' actions required her to settle the action or that defendants settled the action for less than its full value and as such, the motion to dismiss must be granted.
STANDARD OF REVIEW/ANALYSIS
It is well established that "[o]n a motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction" (Leon v Martinez, 84 NY2d 83, 87, 638 N.E.2d 511, 614 N.Y.S.2d 972 [1994]).
Where dismissal of an action is sought, pursuant to CPLR 3211 (a) (1), on the ground that it is barred by documentary evidence, such relief may be warranted only where the documentary evidence "'utterly refutes plaintiff's factual allegations'" and "'conclusively establishes a defense to the asserted claims as a matter of law'" (Amsterdam Hospitality Group, LLC v Marshall-Alan Assoc., Inc., 120 AD3d 431, 433, 992 NYS2d 2 [1st Dept 2014] [internal citations omitted]). The court is "not required to accept at face value every conclusory, patently unsupportable assertion of fact found in the complaint" and can "consider documentary evidence proved or conceded to be authentic" (West 64th Street, LLC v Axis U.S. Ins., 63 AD3d 471, 471, 882 NYS2d 22 [1st Dept 2009], quoting Four Seasons Hotels v Vinnik, 127 AD2d 310, 318, 515 NYS2d 1 [1st Dept 1987] [internal quotation marks omitted]).
On a pre-answer motion to dismiss a complaint for failure to state a cause of action, pursuant to CPLR 3211 (a) (7), "the court should accept as true the facts alleged in the complaint, accord plaintiff the benefit of every possible inference, and only determine whether the facts, as alleged, fit within any cognizable legal theory" (Frank v DaimlerChrysler Corp., 292 AD2d 118, 121, 741 NYS2d 9 [1st Dept 2002]). However, the court is not required to accept factual allegations that are plainly contradicted by the documentary evidence or legal conclusions that are unsupportable based upon the undisputed facts. (See Bishop v. Maurer, 33 A.D.3d 497, 823 N.Y.S.2d 366 [1st Dept. 2006]; Igarashi v. Higashi, 289 N.Y.S.2d 128, 735 N.Y.S.2d 33 [1st Dept. 2001]).
In assessing a motion under CPLR § 3211(a)(7), affidavits and other evidentiary material may also be considered to establish conclusively that the claimant does not have a cause of action. (See M & B Joint Venture, Inc. v. Laurus Master Fund, Ltd., 12 N.Y.3d 798, 800, 907 N.E.2d 690, 691, 879 N.Y.S.2d 812, 814 [2009]; Rovello v. Orofino Realty Co., 40 N.Y.2d 633, 636, 357 N.E.2d 970, 972, 389 N.Y.S.2d 314, 316 [1976]).
"To state a cause of action to recover damages for legal malpractice, a plaintiff must allege: (1) that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, and (2) that the attorney's breach of the duty proximately caused the plaintiff actual and ascertainable damages" (Held v Seidenberg, 87 AD3d 616, 617, 928 NYS2d 477 [2011], quoting Dempster v Liotti, 86 AD3d 169, 176, 924 NYS2d 484 [2011]). To establish causation, a plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages but for the attorney's negligence (see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 441, 867 NE2d 385, 835 NYS2d 534 [2007]). " 'A claim for legal malpractice is viable, despite settlement of the underlying action, if it is alleged that settlement of the action was effectively compelled by the mistakes of counsel' " (Tortura v Sullivan Papain Block McGrath & Cannavo, PC, 21 AD3d 1082, 1083, 803 NYS2d 571 [2005], quoting Bernstein v Oppenheim & Co., 160 AD2d 428, 430, 554 NYS2d 487 [1990]).
Viewing the complaint in the light most favorable to the plaintiff (see Leon v Martinez, 84 NY2d at 87-88), it fails to plead specific factual allegations demonstrating that, but for the defendants' alleged negligence, there would have been a more favorable outcome in the underlying medical malpractice action or that plaintiff would not have incurred any damages (see Tortura v Sullivan Papain Block McGrath & Cannavo, P.C., 21 AD3d at 1083; Holschauer v Fisher, 5 AD3d 553, 772 NYS2d 836 [2004]; Rau v Borenkoff, 262 AD2d 388, 691 NYS2d 140 [1999]). The complaint also fails to sufficiently allege that the subject settlement plaintiff agreed to in open court, was "effectively compelled by the mistakes of counsel" (Tortura v Sullivan Papain Block McGrath & Cannavo, P.C., 21 AD3d at 1083).
Indeed, "a plaintiff must plead and prove actual, ascertainable damages as a result of an attorney's negligence" (Dempster v Liotti, 86 AD3d at 177). "'Conclusory allegations of damages or injuries predicated on speculation cannot suffice for a malpractice action, and dismissal is warranted where the allegations in the complaint are merely conclusory and speculative'" (Tanker v Silver, Forrester & Lesser, P.C., 135 AD3d 908, 909-910, 24 N.Y.S.3d 182 [2d Dept 2016], quoting Bua v Purcell & Ingrao, P.C., 99 AD3d 843, 848, 952 N.Y.S.2d 592 [2d Dept 2012], lv denied 20 N.Y.3d 857, 984 N.E.2d 324, 960 N.Y.S.2d 349 [2013]; see also Dempster, 86 AD3d at 177; Hashmi v Messiha, 65 AD3d 1193, 1195, 886 N.Y.S.2d 712 [2d Dept 2009]).
Here, plaintiff's allegations against defendants do not demonstrate a departure from the degree of skill of a member of the legal community, and are flatly contradicted by the documentary evidence. Plaintiff's claim that she was compelled to settle the matter is belied by her allocution in open court, and also by the documents which demonstrate that her claims of inadequate discovery, failure to retain experts and neglecting to conduct medical examinations are baseless and predicated on pure speculation. Plaintiffs' present dissatisfaction with defendants' preparation of the underlying action for trial and her claim that she was "forced" to settle the action due to defendant Handler's "horrible case preparation", does not support a legal malpractice claim as a matter of law (see Tantleff v Kestenbaum & Mark, 131 AD3d 955, 958, 15 N.Y.S.3d 840 [2d Dept 2015], lv denied 27 N.Y.3d 906, 36 N.Y.S.3d 619, 56 N.E.3d 899 [2016]).
Plaintiff does not set forth any allegations in the complaint to demonstrate that defendants' actions "forced her" to settle the action. She does not set forth the substance of the alleged misrepresentations by defendants, nor does she set forth how these misrepresentations compelled her to settle the matter. Moreover, plaintiff stated at the conclusion of the trial, in open court, that she was satisfied with her counsel and wanted to resolve the matter through settlement rather than continue with the trial. (NYSCEF Doc. No. 20, pp.39-40). Plaintiff's complaint does not provide any detail or information as to the "misrepresentations" that she now claims forced her to settle the action, whereas at the time of settlement she did not make any statements or claims as to such alleged misrepresentations. (Id.).
Additionally, plaintiff's opinions of defendants' professional judgment in choosing how to prepare for trial are not dispositive in an action for legal malpractice. "[A]n attorney is not a guarantor of a particular result . . . and may not be held liable in negligence for . . . the exercise of appropriate judgment that leads to [a perceived] unsuccessful result" (Bua, 99 AD3d at 846-847 [internal quotation marks and citation omitted]; see also Rubinberg v Walker, 252 AD2d 466, 467, 676 N.Y.S.2d 149 [1st Dept 1998]). Indeed, second thoughts regarding litigation strategy, in the form of conclusory allegations, do not set forth a valid cause of action for legal malpractice.
The complaint fails to set forth a valid claim of legal malpractice, as plaintiff's allocution indicates that she had other options available to her; she could have rejected the settlement offer and proceeded to trial. (NYSCEF Doc. No. 17, p. 39). Defendants have demonstrated that the expert witnesses were present in court and ready to testify. Plaintiff's complaint also fails to allege ascertainable damages. The complaint simply fails to state a cause of action to recover damages for legal malpractice against defendants. Accordingly, it is hereby,
ORDERED that the defendants', V.J. Longhi Associates and Morris Handler, motion sequence number 001, to dismiss the complaint is granted and the complaint is dismissed in its entirety as against defendants, with costs and disbursements as taxed by the Clerk of the Court, and the Clerk is directed to enter judgment accordingly in favor of defendants.
Any requested relief not expressly addressed by the Court has nonetheless been considered and is hereby denied and this constitutes the decision and order of the Court. 9/26/2019
DATE
/s/ _________
W. FRANC PERRY, J.S.C.